AUTHORED BY RIDWANUL HOQUE
REPORT ON
CITIZENSHIP
LAW:BANGLADESH
COUNTRY REPORT 2016/14 DECEMBER 2016purposes, whether in hard copies or electronically, requires the consent of the authors. If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the year and the publisher.
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EUDO Citizenship Observatory
Robert Schuman Centre for Advanced Studies in collaboration with
Edinburgh University Law School
Report on Citizenship Law: Bangladesh
RSCAS/EUDO-CIT-CR 2016/14 December 2016
© Ridwanul Hoque, 2016 Printed in Italy
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Bangladesh
Ridwanul Hoque
1. Introduction
Bangladesh emerged as a sovereign nation on 26 March 1971, the day on which it declared itself as an independent country.1 The declaration of independence was followed by a
9-month-long bloody war, and the country became physically liberated from Pakistan on 16 December 1971. The people of Bangladesh through the Constituent Assembly, which comprised all elected representatives of people who were elected for the national parliament and Provincial Legislative Assembly through 1970-1971 elections under the Pakistani regime,2 constituted the new sovereign nation and adopted for themselves the Constitution
(hereafter ‘Constitution’) on 4 November 1972.3 Bangladesh began its journey with the
constituent citizens who were the ‘residents’ of the then East Pakistan. Unlike in India (see Jayal 2016: 164-168), however, there was no debate in the Constituent Assembly regarding the nature of, or the criteria for, Bangladesh citizenship.
Article 6(1) of the original Constitution of Bangladesh stated that ‘the citizenship of Bangladesh shall be determined and regulated by law’.4 Article 6(2), however, characterised
the collective nationality of the people as Bangalee. After an intervening change in 1978,5 the
amended Article 6(2) now provides that the ‘people of Bangladesh shall be known as Bangalees as a nation and the citizens of Bangladesh shall be known as Bangladeshis’.6 It
thus seems that Bangladesh sees the ‘institution of citizen’ (Barber 2016: 37-57) both ‘as legal status’ (Kymlicka & Norman 1994: 352) and ‘as collective identity’ (Bosniak 200: 455).
1 The Proclamation of Independence Order 1971, promulgated by the Constituent Assembly of Bangladesh on 10
April 1971 (with effect from 26 March 1971). See the Seventh Schedule to the Constitution, as below n 3.
2 See the Proclamation of Independence Order 1971, and the Constituent Assembly of Bangladesh Order 1972. 3 The Constitution of the People’s Republic of Bangladesh (effective 16 December 1972).
4 See also art. 152(1) of the Constitution that defines a citizen as ‘a person who is a citizen of Bangladesh
according to the law relating to citizenship’.
5 The first military regime extra-constitutionally amended the Constitution to characterise the citizens of
Bangladesh as Bangladeshis via the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second
Proclamation Order No. IV of 1978), which was later affirmed by the Constitution (Fifth Amendment) Act 1979.
The Bangladesh citizenry has a constitutionally entrenched participatory role in the governance and affairs of the Republic,7 which is a democracy based on universal adult
franchise. The Constitution also imposes a protective duty on the state vis-à-vis the citizenship (the ‘existential aspect of citizenship’: Irving 2016). It both entitles citizens to a number of civil and political rights and subjects them to a duty to observe the Constitution and the laws and to perform public duties.8 ‘Citizenship’ is a condition precedent for them to
exercise voting rights and to run as candidates in general elections,9 to obtain passports,10 and
to access basic state services.
At the outset of this Report, a terminological clarification needs to be made. In the literature and in practices of other countries, ‘citizenship’ and ‘nationality’ are not always understood as synonyms. In Bangladesh, however, the term ‘citizenship’ is of predominant usage. It is used in the Constitution and the citizenship laws of the country, although in some policy documents and legal instruments the term ‘nationality’ or ‘nationals’ have been used interchangeably with ‘citizenship’ or ‘citizens’. In the current Report, ‘citizenship’ and ‘citizens’ are used accordingly in preference to ‘nationality’ and ‘nationals’.
The two primary statutes regulating the citizenship of Bangladesh, indicated in the Constitution, were enacted in 1951 and 1972, in both cases before the Constitution came into force on 16 December 1972. At the founding moment of the country, these laws together provided for the recognition and continuation of existing citizenship, while also providing for the acquisition of citizenship by birth, by descent, and by naturalisation. Although Bangladesh does not in practice follow the ius soli principle, the law, as will be seen below, recognises both the principles of ius sanguinis and ius soli as modes of acquiring citizenship, alongside the rule of naturalisation. A commendable aspect of the Bangladeshi citizenship law has been that it does not provide for arbitrary deprivation of citizenship.11 Moreover, there are no
differentiated citizenship rights for citizens by birth and naturalised or other types of citizens. Bangladesh’s citizenship law, however, remains affected by three major limitations. First, as noted further below, despite recent improvements in this regard concerning citizenship by descent, the citizenship law of the country is still quite discriminatory against women. Second, the citizenship-status of the so-called Bihari people, the Urdu-speaking minority, who were residents at the time of Bangladesh’s independence, is still based on a nebulous footing because of a mischievous 1978 amendment that provided that a person shall not be deemed to be a citizen at the time of independence if he shows any ‘allegiance to a foreign state’.12 Although Biharis were granted citizenship recently, this provision is potentially
susceptible to abuse against this group of citizenry. Third, the current rule regarding dual citizenship is discriminatory against (former) citizens on the basis of country of their acquired citizenship.
At present, policy dialogues and political debates are underway concerning the further development and consolidation of Bangladeshi citizenship law. The most controversial issue in the current citizenship discourse has been the extent of citizenship rights of Bangladesh’s large migrant community overseas.
7 See arts. 11 and 59 of the Constitution that provide for, respectively, ‘effective participation by the people
through their elected representatives in administration at all levels’ and local government bodies composed of elected representatives at all administrative units.
8 See, e.g., art. 21(1) of the Constitution: ‘It is the duty of every citizen to observe the Constitution and the laws,
to maintain discipline, to perform public duties and to protect public property’.
9 See art. 122(2) of the Constitution and sect. 7(1) of the Electoral Roll Ordinance 1982. 10 The Bangladesh Passport Order 1973 (President’s Order No. 9 of 1973).
11 See below Part 3.2.4.
2. Historical Background
In the British period, the citizens of British India, of which present day Bangladesh was a part, were known as ‘British subjects’13 rather than British citizens. This inchoate institution
of citizenship14 was known as ‘Commonwealth Citizenship’ or ‘British nationality’.15 After
the independence of India and Pakistan in 1947 from the British colonisation,16 people of
Pakistan (and, for that matter, of Bangladesh) enjoyed the Commonwealth citizenship until 1951 when the Citizenship Act was enacted defining the national citizenship. The 1951 Act in Pakistan was enacted in line with an agreement reached ‘between the UK Government and Commonwealth countries including India and Pakistan’ that culminated in the British Nationality Act 1948.17 This British Act of 1948 ‘recognised that independent
Commonwealth countries would determine their own rules on nationality’ although ‘the unifying concept of “subject” remained’ as it were (Sawyer & Wray 2014: 4), that is, the Commonwealth Citizenship was to continue in the independent countries until their own citizenship laws were enacted.18 India and Pakistan themselves wanted, and they were
successful in this regard, to see ‘Commonwealth citizenship’ as an alternative to the status of British subject.19 Thus, because of the nature of ‘Commonwealth citizenship’ that continued
in Pakistan until 1951, the people of Pakistan, although they were citizens of an independent country, could not enjoy, it can be argued, the full citizenship in a legal sense.20
The genesis of Bangladesh’s post-colonial citizenship regime dates back to the Pakistan Citizenship Act 1951 that later became part of the corpus of Bangladeshi law upon independence of the country. The Citizenship Act 1951 (hereafter the 1951 Act),21 along with
the Citizenship Rules 1952, framed by the then Pakistan government under it, was adopted as an ‘existing law’.22 Immediately after independence, however, the President promulgated a
new citizenship law, the Bangladesh Citizenship (Temporary Provisions) Order 1972.23 The
1972 Order was later supplemented by the Bangladesh Citizenship (Temporary Provisions)
13 By virtue of, for example, the British Nationality and Status of Aliens Act 1914 (as amended up to 1943). 14 This view is contradicted by the Indian Supreme Court, which in their decision in the State Trading Corporation of India vs The Commercial Tax Officer, 1963 AIR 1811, observed that ‘[t]he status of
British Indians prior to 1947 was … analogous to the status of citizens of a Republic’.
15 See, e.g., sect. 13 of the British Nationality and Status of Aliens Act 1914.
16 This is famously known as ‘partition’ of British-India. See, among others, Prasad (1998). 17 Bangladesh v Prof Golam Azam (1994) 46 DLR (AD) 193, per Mustafa Kamal J, paras. 91-92. 18 By virtue of sect. 1 of the British Nationality Act 1948.
19 See Indians Overseas: A guide to source materials in the India Office Records for the study of Indian emigration 1830-1950. Available at: https://www.bl.uk/reshelp/pdfs/indiansoverseas.pdf (‘In 1948 India and
Pakistan made an important contribution to the British Nationality Act when they requested and succeeded in having the phrase “Commonwealth citizenship” accepted as an alternative to the status of British subject’).
20 As Mustafa Kamal J observed in Golam Azam’s case, above n. 17, at [92], ‘[d]uring the period from 1948 to
1951, Pakistani citizens were only potentially so. They enjoyed Commonwealth Citizenship which was synonymous with British subjects without citizenship’. But see The State Trading Corporation of India vs The
Commercial Tax Officer, above n. 14, in which the Indian Supreme Court held that the assumption that there
were in India prior to 26 January 1950 no citizens was wrong. It should be noted that according to the EUDO CITIZENSHIP observatory, the terms citizenship and nationality are synonyms, referring to, in the narrow sense of a legal status, the link between individuals and their independent polity. Available at:
<http://eudo-citizenship.eu/databases/citizenship-glossary/terminology>.
21 Act No. II of 1951.
22 See art. 149 of the Constitution of Bangladesh. It is to be noted that although the Citizenship Rules 1952
became part of Bangladesh laws, they are hardly, if at all, applied by the authorities.
Rules 1978.24 In addition to these legal instruments, there is the Naturalisation Act 1926,25 a
British-era legislation that was enacted as ‘the Indian Naturalization Act’ in 1926 ‘to consolidate and amend the law relating to the naturalisation in British India of aliens resident therein’. Pakistan inherited this law in 1947. Upon its independence, the 1926 Act had therefore become a Bangladeshi law on and from 26 March 1971. The Naturalisation Act 1926, however, has never been amended in post-Independence Bangladesh except for cosmetic adaptations that were required by the emergence of a new legal system.
The legal regime of Bangladesh citizenship thus comprises the Citizenship Act 1951 and the Rules of 1952, the 1972 Citizenship Order and Rules of 1978 made thereunder, the Naturalisation Act 1926 and the Rules of 1961, and relevant judicial decisions.
Bangladesh’s citizenship laws today remain as ‘haphazard’ (Paulsen 2006) and internally conflicting as they were during the formative years of the country. One particular source of this complexity and inconsistency is the existence of a plurality of primary and secondary legislations on citizenship. For the example, naturalisation is covered by three primary statutes and three sets of secondary legislation. Another source of complexity is generated conjointly by Bangladesh’s adoption of the 1951 Pakistani Act that was enacted in the then context of partition of British India in 1947 and the country’s emergence as a sovereign nation in 1971, which gave rise to, and was preceded by, population migration, displacement, and stagnation. To overcome this difficulty aligned with the change of sovereignty vis-à-vis the territory and people of Bangladesh, the 1972 Citizenship Order was promulgated soon after the physical liberation of the country on 16 December 1971. As its very title suggests, the 1972 Order ‘appears to have been enacted with a view to making some temporary provisions’ relating to citizenship of Bangladesh in the context of ‘immediate needs’ of a newly emerged state.26 The need for a law governing the initial status of
citizenship was strongly felt even before the 1972 Order was promulgated and the 1951 Act was accepted. To fill the gap, the government issued an administrative order which was superseded by the 1972 Order.
The 1972 Order, though promulgated on 15 December 1972, is given retrospective effect from 26 March 1971, while the 1951 Act, although adopted on the same date, commenced on 13 April 1951. The 1972 Order did not repeal the 1951 Act. As such, the 1972 Order and the 1951 Act are to supplement each other,27 but they are, in more than one respect,
mutually conflictive too. At the founding moment of the country, the 1951 Act provided for the continuation of existing citizenship of the residents of what was then East Pakistan, as well as for the acquisition of citizenship by birth, by descent, and by naturalisation. The 1972 Order re-affirmed the rule of initial citizenship and also impliedly provided for citizenship by birth. The 1972 also contains provisions relating to naturalisation, dual citizenship, and the status of permanent residency for foreigners.
24 See Bangladesh Gazette, Extraordinary, 27 July 1978 (as amended in 1985 through SRO No. 164-L/85, 8
April 1985) (hereafter the ‘1978 Citizenship Rules’ or ‘1978 Rules’).
25 Act No. VII of 1926. Two predecessor laws of the 1926 Act were the British Nationality and Status of Aliens
Act 1914 and the Indian Naturalisation Act 1852.
26 Bangladesh Law Commission, below n. 135, at p. 1.
27 They also need ‘to be read together to get a complete picture of the law of citizenship in Bangladesh’: Golam Azam’s Case, above n. 17, per Latifur Rahman J.
2.1 Initial determination of citizenship
At the time of independence of Bangladesh, the rules for initial determination of citizenship were in the main based on notions of (conditional) ius soli (birth) and ius sanguinis (descent). Both the Citizenship Act 1951 and the Citizenship Order 1972 jointly cover this field, laying down, by and large, the same criteria.
The Citizenship Act 1951 provided that a person would be ‘deemed’ a citizen of Bangladesh at the commencement of this Act (13 April 1951) if he or she was a person ‘who or any of whose parents or grandparents was born in the territory now included in Bangladesh and who, after the fourteenth day of August, 1947, has not been permanently resident in any country outside Bangladesh’.28 Moreover, a person who or any of whose parents or
grandparents was born in British India and had his domicile in Bangladesh,29 and a person
who before the commencement of the 1951 Act ‘migrated to […] Bangladesh from any territory in the Indo-Pakistan sub-continent’ with the intention of residing permanently in Bangladesh was also to be deemed a citizen of Bangladesh.30
These citizens of East Pakistan thus became the constituent citizens of Bangladesh upon its independence on 26 March 1971. However, the 1972 Order again laid down the rule for the initial determination of Bangladesh citizenship, and thus replaced the operation of sect. 3 of the 1951 Act (Islam 2012: 68, n. 2). The 1972 Order basically provided for the constituent citizenship, that is, initial citizenship of the people by operation of the law. It provided for the ‘deemed citizenship’ of a person due to his or her substantive presence or permanent residence in Bangladesh at the time of the emergence of the country. Article 2, clause (i) of the 1972 Order provided that any person who or whose father or grandfather ‘was born in’ and who ‘was a permanent resident of’ what became Bangladesh on 25 March 1971, and continues to be so resident, shall be deemed to be a citizen of Bangladesh. This provision of citizenship, though based on permanent residence,31 suggests that one could acquire
citizenship not only by birth in the territories that constituted Bangladesh, but also by descent if his or her forefather had acquired citizenship via permanent residence. This provision, therefore, seems to be overlapping with those of the 1951 Act.32
Further, Article 2(ii) provided that a person would be deemed to be a citizen of Bangladesh if he or she ‘was a permanent resident of’ Bangladesh on 25 March 1971, and ‘continues to be so resident and is not otherwise disqualified for being a citizen by or under any law’. In a case involving the citizenship status of a person who showed allegiance to Bangladesh and went to Pakistan without relinquishing his citizenship, the court held that his Bangladesh citizenship was not lost as he was a permanent resident according to these provisions. The father of the person concerned was a retired judge of the High Court of East Pakistan, while the mother lived and died in Bangladesh. The person owned an apartment of his own in Dhaka. In light of Article 2 of the 1972 Order and these facts, the Appellate
28 The Citizenship Act 1951, sect. 3(a).
29 Ibid., sect. 3(b). According to sect. 7 of the Succession Act 1925, the domicile of origin of a person is in the
country in which at the time of his birth his father was domiciled, or, if he is a posthumous child, in the country in which his father was domiciled at the time of the father’s death. See also sect. 11 of the 1925 Act (any person may acquire a domicile in Bangladesh by making a declaration in writing of his desire to acquire such domicile).
30 The Citizenship Act 1951, sect. 3(d).
31 See art. 2 of the Citizenship Order 1972 (uses the term ‘permanent resident’) and sect. 3(a)-(b) of the
Citizenship Act 1951 (uses the terms ‘permanently resident’ and ‘domicile … in Bangladesh’).
32 As Paulsen (2006: 59) observes, this confusing provision ‘does not seem to have been done by design but
rather by oversight during the hasty drafting of the Citizenship Order causing, by default, citizenship via birth and descent to be still governed by the Citizenship Act’.
Division held that his permanent residence was in Bangladesh and hence his citizenship could not be denied.33
The 1972 Order also provided for the continuous residence status of those who were stranded in Pakistan in the aftermath of war of independence, albeit without mentioning the term Pakistan. It laid down that any person who was a permanent resident of Bangladesh and was residing, in course of employment or for the pursuit of studies, in a country that ‘was at war with or engaged in military operations against Bangladesh’ and was being prevented from returning to Bangladesh would be deemed to continue to be resident in Bangladesh.34 By this,
the then residents of Bangladesh (East Pakistan at the time) who became stranded in Pakistan (West Pakistan) were recognised as citizens of Bangladesh, although a doubt as to the citizenship status of those who were staying in such a hostile country for other purposes than employment and studies arose. Interpreting the relevant rule (proviso to Article 2 of the 1972 Order), the Appellate Division of the Supreme Court in Bangladesh v Professor Golam Azam (Golam Azam’s Case)35 held that ‘persons who stayed in such a hostile country for purposes
other than employment or studies can still claim continuation of residence in Bangladesh’ under the general scheme of the law, if not under this specific proviso.36 In this case,
Professor Azam stayed for a long time in Pakistan not for the reason of employment or studies, and he even held a Pakistani passport when he returned to Bangladesh. The Court adjudged the deprivation of his citizenship as unlawful because he was a permanent resident of Bangladesh at the relevant point of time, that is, 25 March 1971.37
2.2 Development and reform of citizenship law
The 1972 Order was later amended thrice, in 1973, 1978, and 1990.38 In 1990, the Citizenship
Order was amended to make the provision of status of ‘permanent resident’ for foreigners.39
Later, the government made the grant of ‘right of permanent residence’ dependent upon an investment of $75,000 in any Bangladeshi industry or financial sector. This system of permanent residency status for foreigners is now administered by the Bangladesh Investment Development Authority that was earlier known as Bangladesh Investment Board40 in
conjunction with the Ministry of Home Affairs. Interestingly, however, it is not yet clear which rights and obligations a foreigner who is granted a permanent resident status would be entitled and subject to.
The major yet controversial reform of the 1972 Order came in 1973 and 1978. An important driver of these amendments was the identity issue of the Urdu-speaking minority in Bangladesh in the aftermath of the country’s independence, who were largely known as having no allegiance to Bangladesh but rather to Pakistan from which the country became independent.41 In 1973, a new Article 2B was inserted to the Citizenship Order, further
33 Bangladesh v Mirza Shahab Ispahani (1988) 40 DLR (AD) 116. 34 See the proviso to art. 2 of the 1972 Order.
35 As above in note 17.
36 Ibid., at 209 (para. 109), per Mustafa Kamal J. 37 Ibid., See further below at part 3.2.1.
38 See the Bangladesh Citizenship (Temporary Provisions) (Amendment) Ordinance 1973 (Ord. No. X of 1973)
and the Bangladesh Citizenship (Temporary Provisions) (Amendment) Ordinance 1978 (Ord. No. VII of 1978).
39 See sect. 4A of the 1972 Citizenship Order that provided that the government may grant right of permanent
residence to any person ‘on such conditions as may be prescribed’. This reform was made by virtue of sect. 3 of the Bangladesh Citizenship (Temporary Provisions) (Amendment) Act 1990 (Act LVIII of 1990).
40 See the Bangladesh Investment Development Authority Act 2016 (Act 36 of 2016). 41 On this, see Paulsen (2006) and further below part 3.3.
amended in 1978, which provided that the acquisition of Bangladesh citizenship by operation of law, that is, because of one’s birth or permanent residence in Bangladesh on or before 25 March 1971 would not apply if the concerned person owed, affirmed or acknowledged, expressly or by conduct, allegiance to a foreign state.42 As will be seen below, this provision
was applied to prevent the people of Bihari community from being citizens of Bangladesh. The next important reform was in the area of dual citizenship, acquisition of which was prohibited by the 1951 Act (sect. 14). By virtue of a 1978 amendment to the 1972 Order, however, the facility of dual citizenship was made possible. A Bangladeshi citizen, though he loses his citizenship upon acquisition of citizenship of a foreign state, could reacquire Bangladeshi citizenship. Without mentioning the term ‘dual citizenship’, Article 2B(2) of the 1972 Order now provided the government with a broad power to ‘grant citizenship of Bangladesh to any person who is a citizen of any state of Europe or North America or of any other state’ which the Government may specify.
The reform relating to dual citizenship was seemingly influenced by the presence of a growing community of Bangladeshi expatriates overseas. In the late seventies when this provision was enacted, most Bangladeshi migrants were residents (citizens) in the UK, the USA, Canada, and major European countries such as Germany and France. Understandably, the government did not want its increasing migrant communities overseas to be legally disassociated from Bangladesh. Moreover, as is the case now, these expatriates had been the source of a huge amount of foreign remittances.43
Another significant reform with regard to citizenship by descent was brought about in 2009. Section 5 of the 1951 Act, as amended, accords citizenship to children born outside Bangladesh to either a Bangladeshi father or mother. This provision initially remained gender-biased, and it was only the father through whom a child could acquire citizenship.44
This discriminatory rule of citizenship by descent was unsuccessfully challenged in 1997 by Sayeeda Rahman Malkani, a Bangladeshi citizen in France, who was married to an Indian citizen and had two sons. When her two sons were refused Bangladeshi citizenship, Malkani challenged section 5 of the 1951 Act before the High Court Division of the Bangladesh Supreme Court on the ground that the law preventing only women from passing citizenship to children of a marriage between such women and foreign citizens was in contravention of the Constitution’s equality clause. In Sayeeda Rahman Malkani v Bangladesh (1997),45 however,
the High Court Division turned a blind eye to the citizens’ right to enjoy equal legal protection and equality under Articles 27 and 28 of the Constitution, and ruled that the statutory provisions were unambiguous in using the words ‘father’ and ‘grandfather’. In adopting an overly legal positivist interpretation, the Court not only diminished the force of a basic constitutional norm but also brushed aside the application of Bangladesh’s international obligation under, for example, CEDAW that the country ratified in 1984.46 A decade after this
judgment, its consequence was remedied by the legislature when the amendment inserted into
42 The 1972 Citizenship Order, art. 2B(1). 43 Ibid., art. 2B(2). See further below at part 3.2.3.
44 This gender discrimination earlier prevailed in other South Asian countries. As of 2015, twenty-seven
countries did not allow women to pass their citizenship to their children (ERT 2015: 1).
45 Writ Petition No. 3192 of 1997 (judgment of 1 September 1997, per M.M. Hoque & M.H. Ameen JJ). For a
commentary on this, see Forster et al. (2003: 9-11), and Pereira (2002; 1998).
46 The Convention on the Elimination of All Forms of Discrimination Against Women (art. 9 prohibited
discrimination against women in regard to rights pertaining to nationality and citizenship). Two other relevant international treaties ratified by Bangladesh at the time and which prohibited gender discrimination in the transmission of citizenship from parent to child were the Convention on the Rights of the Child 1989 (arts. 2 & 7) and the Convention on the Elimination of All Forms of Racial Discrimination 1965 (art. 5).
sect. 5 of the 1951 Act the word ‘mother’ alongside ‘father’ and thus made the principle of citizenship by descent gender-neutral.47
2.3 Legacy of pre-independence legal regime, and the impact of bi-lateral relationships on citizenship law
As a legacy of Independence, Bangladesh’s citizenship law was primarily based on the Pakistani model. Pakistan’s citizenship law during the period preceding Bangladesh’s independence was both influenced by and reactive to developments in Indian citizenship law. On the other hand, post-independence Bangladeshi citizenship law has been indirectly influenced by developments in India as well as in Pakistan. Three aspects are noticeable. First, the 2009 amendment to the Bangladeshi citizenship law providing for citizenship by descent through either of the parents who is a citizen of Bangladesh was probably influenced by similar amendments in India in 1992 and in Pakistan in 2000.
The second example of historical or motivated reform pertains to the rule against dual citizenship that prevailed in Bangladesh, Pakistan, and India. At the time India became independent in 1947, ‘it had been the consistent position of its political leadership that Indians living in other countries must give their complete allegiance to their adoptive homes’ (Jayal 2016: 177). This had indeed been a legacy of the common law attitude to undivided nationalist allegiance as a condition of citizenship. The same sentiment was there in Pakistan when it enacted its citizenship law in 1951 to provide that ‘a citizen of Pakistan’ shall lose citizenship upon acquisition of foreign citizenship (sect. 14). Bangladesh adopted this provision of prohibition on dual citizenship, but opened the possibility of dual citizenship on a limited scale in 1978, as discussed above. Thirdly, therefore, the rule of limited dual citizenship that is also common in Pakistan and India can reasonably be seen as a result of mutual legal influence.48
It is pertinent here to further reflect on the impact of international migration from Bangladesh on the citizenship discourse. Bangladesh is a country of net-migration. Indeed, it has been pre-dominantly a source country of migrants. Migration from Bangladesh for overseas work began in 1976 – and unofficially even earlier.49 ‘In the past 40 years, almost 10
million Bangladeshis migrated to around 160 countries as skilled, semi-skilled or less-skilled workers, and some as professionals’.50 Not all of these people have, however, become citizens
of other countries or denounced their Bangladesh citizenships. And, there is no available data showing the impact of out-bound migration of Bangladeshis on the size of the citizenry of the country.
47 See the Citizenship (Amendment) Act 2009 (Act XVII of 2009), sect. 2 (5 March 2009, with effect from 31
December 2008). In Pakistan, a similar amendment was brought about in 2000 by the Ordinance No. 13, and in India the discrimination against women with regard to passage of citizenship to children was removed in 1992 by amending sect. 4 of the (Indian) Citizenship Act 1956.
48 It should be noted, however, that India does not expressly recognise dual citizenship, but rather has created a
new institution called ‘Overseas Indian Citizens’. On the other hand, Pakistan in 1972 (25 September) amended the Pakistan Citizenship Act 1951, sect. 14, to provide for dual citizenships for people of Pakistani origin who were citizens of the United Kingdom or any other country as the government would specify. In 2002 this facility was extended for those who were citizens of the USA and Sweden.
49 See an interview by Ridwanul Hoque, titled ‘A situation of bonded labour’ published in D+C (Democracy and Development), 3 April 2016, available at:
<https://www.dandc.eu/en/article/many-bangladeshi-migrants-are-exploited-abroad>.
In most cases, the destination countries for Bangladeshi migrants/expatriates are Middle-Eastern countries. There is an increasingly bigger size of Bangladeshi diaspora across the world including in the USA, Canada, the UK, and other western and European countries. Foreign remittances from Bangladeshi migrants or expatriates have become the third pillar of Bangladesh’s economy, behind agriculture and the garments export industry. Bangladesh’s migrants remitted USD 15 billion to Bangladesh in 2015 that was 13 times more than the total amount of foreign investment.51 Undoubtedly, Bangladesh’s migrant communities are a
politically important stakeholder from the perspective of governance and public participation. Unfortunately, however, there is little, if any, influence of these people on the development and discourse of citizenship law back home in Bangladesh. One apparent reason is that the bulk of Bangladeshi migrants are temporary contractual workers or professionals in destination countries that do not grant them citizenship. Bangladesh accordingly focuses more on the citizenship rights of these people, to be enjoyed as citizens of Bangladesh in countries of work, in Bangladesh, and during their transition.52 On the other hand, the government tends
to value, though reluctantly, the expatriates who reside in the Western or resource-rich countries as well as those who have settled as citizens there. A reflection, probably the lone case, of the influence of this class of Bangladeshi expatriates can be seen in the limited system of dual citizenship for them. Nonetheless, as the current debates concerning the reform of dual citizenship, discussed further below, show, even this minimal influence of the expatriates has been gradually shrinking.
While the international migration of Bangladeshi citizens for work or otherwise has not been generally a factor in the development and reform of citizenship laws, the issue of migration of Bangladeshis into India has influenced changes in the Indian law. There was a huge influx of Bangladeshi refugees, reportedly 10 million, to India during the country’s liberation war of March-December 1971. While most refugees returned after Bangladesh’s independence, many stayed back in India. Bangladesh, however, is often accused for its failure to stop the unlawful or irregular movement of its citizens to India in the post-1971 years.53 These facts and debates had an impact on India’s citizenship law. For example, in
order to regulate citizenship of children of parents who are ‘migrants from Bangladesh’ (Jayal 2016: 171), India inserted an exception to the rule of citizenship by birth. An amendment of the citizenship law provided that, in order for a person born in India to become a citizen, at least one of his or her parents must be a citizen of India and the other parent must not be ‘an illegal migrant’ at the time of his or her birth’.54
Another problematic issue of citizenship concerning people of Bangladesh ‘enclaved’ in territories within India (see Jones 2009 & Van Schendel 2002), which until recently remained an unresolved bilateral issue between India and Bangladesh, merits attention. In the aftermath of the partition of British India in 1947 as well as the emergence of Bangladesh in 1971, there were 106 Indian enclaves (with 37,330 residents) in Bangladesh and 96 Bangladeshi enclaves (with 14,200) in India.55 Practically, these people were non-citizens of
either country and they had been living in a situation of virtual statelessness. Having been enclaved in foreign islets, they could not exercise their right to vote and hence participation in the state affairs was at the minimum. As a document issued by the Indian government puts it, ‘the inhabitants in the enclaves could not enjoy full legal rights as citizens of either India or
51 Ibid.
52 See the Overseas Employment and Migrants Act 2013. Yet successive governments have persistently refused
the expatriates the right to vote while abroad.
53 On this see Samaddar (1999), Datta (2004), and de la Vega (2015). 54 See the Citizenship Act 1955, sect. 3(1) (as amended by Act 6 of 2004).
55 According to the agreement of 1974, there are 111 Indian enclaves and 51 Bangladeshi enclaves to be
Bangladesh and infrastructure facilities such as electricity, schools and health services were deficient’.56 India and Bangladesh signed a bilateral treaty on 16 May 1974 to resolve the
enclave issue, which led to some, if inadequate, progress.57 Recently, this old land-dispute
agreement has been ratified by India, which eventually enacted a constitutional amendment to facilitate the implementation of the agreement concerning the exchange of ‘enclaves’.58 Under
the new arrangement agreed on 31 July 2015, people were allowed to stay in their enclaves or to move out to their respective country (Rahman 2015). Eventually, Bangladeshi and Indian governments have now taken control of their respective enclaves (De la Vega 2015: 432 n. 10). People who stayed in Bangladeshi enclaves or have returned to Bangladesh from India thus became Bangladeshi citizens,59 with arguably a fuller citizenship which they never
enjoyed before.60 Recently (31 October 2016), local government elections have been held in
22 such former enclaves and the ‘new’ citizens of Bangladesh have exercised their voting rights after 69 years since partition of British India in 1947.
An unpleasant bilateral relationship between Pakistan and Bangladesh with respect to Biharis residing in Bangladesh during and preceding Bangladesh war of 1971 provided a context for certain changes in the citizenship law of both countries. When negotiations between Bangladesh and Pakistan concerning repatriation to Pakistan of Biharis who were willing to resettle were going on, Bangladesh enacted an amendment in 1978 that provided that a person who would otherwise be regarded as a citizen shall not qualify for being a citizen if he ‘owes, affirms or acknowledges, expressly or by conduct, allegiance to a foreign state’.61 This new provision was for a long time resorted to by the authorities to deny
Bangladesh citizenship to the Biharis, especially those who expressed willingness to be repatriated to Pakistan. As explained further below, because of this rule and also for political reasons Biharis were not accepted as Bangladeshi citizens until a court intervention in 2008. On the other hand, Pakistan too amended its citizenship law in March 1978,62
providing, inter alia, that all Pakistani citizens who, at any time before 16 December 1971, were domiciled in East Pakistan and who were residing there on that day and continued to so reside ‘voluntarily or otherwise’ shall cease to be citizens of Pakistan.63 It was also provided
that such persons, if they voluntarily migrated to Pakistan after 16 December 1971 with the approval of the Pakistani Government, would continue to be citizens of Pakistan. Moreover, the Biharis in Bangladesh whose repatriation to Pakistan had been agreed to but who had not been so repatriated before 1978 were to continue as citizens of Pakistan.64 Put simply, the
56 As in n. 57 below, at p. 5.
57 See the Ministry of External Affairs, India. India and Bangladesh Land Boundary Agreement. Available at:
http://www.mea.gov.in/Uploads/PublicationDocs/24529_LBA_MEA_Booklet_final.pdf. This Agreement was renewable at 25 years’ interval. Accordingly, a protocol was signed to that effect on 6 September 2011.
58 See the Constitution (One Hundredth Amendment) Act, 2015 (India) (28 May 2015). Pursuant to this
agreement, Bangladesh amended its Constitution as back as 1974, and introduced the idea of ‘included territories’ as state territories. See the Constitution (Third Amendment) Act, 1974 (Act LXXIV of 1974).
59 It is not made known which is the legal source of their citizenship, but it is presumable that these people living
in enclaves within Bangladesh became Bangladeshi citizens by virtue of sect. 13 of the Citizenship Act 1951 which provides for ‘citizenship by incorporation of territory’.
60 The expectations of the enclave people are reflected in the statement of Golam Mostofa, the Secretary General
of an association of enclaves who stated as follows: ‘All of us are now Bangladeshi citizens. Our pains and decades of frustration are over. We are now liberated and can now claim citizenship rights. The enclaves will now have schools, clinics and government offices’ (quoted in NDTV, June 7, 2015, available at:
http://www.ndtv.com/india-news/thousands-celebrate-historic-india-bangladesh-border-pact-769494).
61 Article 2B, clause (1)(i), of the 1972 Citizenship Order. 62 See the Pakistan Citizenship (Amendment) Ordinance, 1978. 63 The Pakistan Citizenship Act 1951, sect. 16A(1)(i).
laws of both Bangladesh and Pakistan made the Biharis’ claims of citizenship of either country a little more difficult.65
Attention can now be given to the most pressing bilateral issue between Bangladesh and its neighbour on the south-eastern border, Myanmar (earlier called ‘Burma’), with respect to Rohingya refugees. The Rohingya are an ethnic religious-linguistic minority in the Rakhine state of Myanmar and probably the most persecuted people on earth (Hoque 2016). Myanmar deprived them of citizenship in 1982 and officially considers them as Bengalis entering Myanmar during British rule in the late 1940s or earlier (Hoque 2016). Persecution of Rohingyas began even before Myanmar enacted the 1982 citizenship law, which eventually led to an exodus of Rohingyas into neighbouring territories. Bangladesh accepted some 200,000 Rohingyas in 1978 and 250,877 Rohingyas in 1991 as refugees (also called ‘Myanmar refuges’) ‘on a prima facie basis’ and from ‘humanitarian considerations’.66 In the
following years, the vast majority of these refugees were repatriated to Myanmar. Approximately 30,000 registered ‘Myanmar refugees’ in Bangladesh have been now living in two camps in two small towns at the southernmost tip of the country under Cox’s Bazar district. On the other hand, around 300,000 to 500,000 undocumented Rohingya people have settled in villages and elsewhere without intervention of the authorities,67 and are known as
‘self-settled’ Rohingyas (Lewa 2008). Rohingya refugees are almost always migrants without valid legal documents, so these forlorn people are denied human dignity and human rights (Hoque 2016). In the past years, Rohingyas from refugee camps in Bangladesh, grouped with Bangladeshi citizens, tended to cross sea on boats and ended up being victims of human trafficking and smuggling, many facing the tragic deaths in transition. Some Rohingyas, however, are reported to have obtained forged Bangladeshi passports to enable them to travel and work abroad.
Rohingya refugees in Bangladesh or the self-settled undocumented Rohingyas are stateless refugees (Sen 1999) or undocumented stateless immigrants. There are no legal rules facilitating their access to permanent residence or citizenship. Neither does the government of Bangladesh presently permit the local integration of refugees (UNHCR 2007: 37). Consequently, children born of Rohingya parents living in camps are not accepted as citizens of Bangladesh, although the present rule of citizenship by birth arguably supports their right to Bangladesh citizenship.68 Interpreting the current principle of citizenship by birth as having
excluded the Rohingya children born in Bangladesh would run afoul of the principles enunciated in the 1961 Convention on the Reduction of Statelessness, under which a State Party has an obligation to grant its citizenship to a person born in its territory who otherwise will be stateless.69 Bangladesh has not yet joined this Convention, but because of its avowed
state policy of commitment to respect ‘international law and the principles enunciated in the United Nations Charter’,70 it arguably has a de facto obligation under this international treaty
‘in discharging’ its functions in the field of the law on citizenship (Islam 1990: 5). Moreover, as the Supreme Court has observed, ‘a few salutary features of the growing international
65 In a recent court hearing on 18 February 2015, the Pakistan government argued that because of section 16A of
the Pakistan Citizenship Act 1951, Biharis residing in Bangladesh lost their citizenship of Pakistan (Iqbal 2015).
66 Bangladesh’s ‘National Strategy Paper on Myanmar Refugees and Undocumented Myanmar Nationals in
Bangladesh 2013’ (approved by the government on 9 Sept. 2013). It is of relevance to note that in November 2016 another wave of a serious form of persecution has engulfed Rohingyas in Myanmar, which led several thousand Rohingyas to desperately try to enter Bangladesh.
67 Ibid. (National Strategy on Myanmar Refugees).
68 Similarly, Rohingya children born in Malaysia and Thailand are not granted citizenship of these countries
(ERT 2014).
69 The 1961 Convention on the Reduction of Statelessness, art. 1. 70 The Constitution of Bangladesh, art. 25.
norms in this regard [as enshrined in this treaty] have stood embodied in [Bangladesh’s] national jurisprudence’.71
Further, Bangladesh has not acceded to the 1951 Refugee Convention, and does not have any legislative provisions that allow those who are often called ‘illegal’ (irregular) or ‘undocumented’ immigrants to seek asylum or the permanent residency status on humanitarian grounds. As the government often claims, it accepted ‘Myanmar refugees’ not out of any obligation, but rather acting under its prerogative and on a humanitarian ground.72
As such, the Rohingya refugees or the self-settled Rohingyas do not currently have a chance to get ‘earned citizenship’ (Ahmad 2017) by virtue of the government’s amnesty or regularisation. Nor do their children born in Bangladeshi camps have a right to be naturalised on the basis of residence/domicile in Bangladesh for a certain period.73
3. The current citizenship regime
3.1 Acquisition of Bangladesh Citizenship
Across the world, the two traditional, principal forms of acquisition of citizenship have been ius soli (citizenship by territorial birth) and ius sanguinis (citizenship by descent), both being dependant on birth of the child.74 Upon its independence in 1971, Bangladesh adopted these
two modes of citizenship acquisition, while also adopting at the same time the rule of naturalisation.75
According to the principle of ius soli (‘law of the soil’), a child born in a country becomes citizen of that country regardless of the status of the parents. This mode of citizenship acquisition has traditionally been the approach of common law countries (Shearer & Openskin 2012: 98). The modern trend both amongst common law and civil law countries, however, has been towards the ‘availability of jus soli citizenship, but in more conditional
71 Golam Azam’s Case, above n. 17, at para. 48, per M.H. Rahman J.
72 But for this reluctant recognition, Rohingya refuges would have been subject to deportation to their source
country under the Foreigners Act 1946, which is in force in Bangladesh. An earlier law, still in force in Bangladesh, that authorised deportation of irregular immigrants from what has now become Bangladesh is the
Bengal Foreign Immigrants Regulation of 1812 (Bengal Regulation XI of 1812). It is to be noted that
Bangladesh has recently adopted a national strategy on Rohingya refugees/undocumented Myanmar nationals (above n. 66) with a view to, among others, ‘providing temporary basic humanitarian relief’ to these people.
73 Such a system exists in Australia under which a child born in Australia to non-citizen parents can acquire
citizenship after a ten years’ stay. See the Australian Citizenship Act 2007 (Cth), sect. 12.
74 For a jurisprudential critique of this idea of citizenship transmission, see Ahmad (2017) (‘Such a citizenship
regime suffers from a fundamental tension, as citizenship promises equality, but its distribution is morally arbitrary’).
75 See the Citizenship Act 1951, which also provides for acquisition of citizenship (i) by migration, (ii) by
registration, and (iii) by incorporation of territory. These categories of citizenship acquisition have indeed been rendered historical now. Citizenship by migration, for example, applied to those people who after 13 April 1951 and before 1 January 1952 migrated to Bangladesh from other parts of the Indo-Pakistan sub-continent (sect. 6 of the 1951 Act). On citizenship by registration and citizenship by incorporation of territories, see respectively sects. 12 & 13 of the 1951 Act.
forms, dependent on limited forms of prior parental residence and other conditions identified with integration’.76
Section 4 of the Citizenship Act 1951 provides for the acquisition of citizenship by birth, or ius soli citizenship. Despite this provision, however, it is debatable whether Bangladesh recognises unconditional ius soli citizenship.77 Section 4 of the 1951 Act says that
‘[e]very person born in Bangladesh after the commencement of this Act shall be a citizen of Bangladesh by birth’. This provision seems to be broad in its scope and, having commenced in 1951, may cover any person born in Bangladesh either before or after its independence in 1971 and even if the person’s parents are not citizens of Bangladesh. On the other hand, a proviso to section 4 provides that the rule of citizenship by birth does not apply to a child whose father is a foreign diplomat in Bangladesh at the time of his or her birth or is an enemy alien. These are internationally accepted exceptions to the ius soli principle.78 In other words,
section 4 does not attach any exception to the ius soli principle. From these perspectives, section 4 can be said to have enacted the unconditional rule of ius soli.
The judiciary, however, seems to regard section 4 to have referred only to birth of the concerned person in independent Bangladesh, and the date of 26 March 1971 is a crucial determinant for that purpose.79 Generally, if a person is born before independence, ‘he or she
is governed by the Citizenship Order and obtains citizenship by virtue of’ her or her forefather’s permanent residence, and, ‘[I]f the person is born after independence, he or she is governed by the Citizenship Act and acquires citizenship by birth’ (Paulsen: 2006: 58). On the other hand, the 1972 Order that provides for citizenship by birth and permanent residence in Bangladesh before 26 March 1971 does not clearly rule out the possibility of unconditional ius soli citizenship, attributable to parents and not citizens. Article 2 of the 1972 Order, at the time of its commencement (26 March 1971), conferred on every person Bangladesh citizenship who was born and had been a permanent resident in Bangladesh.80 Article 2 of the
1972 Order can, therefore, arguably be said to be a reflection of the ius soli principle, although this applies only to persons already domiciled or resident at the time of Bangladesh’s independence rather than to persons born thereafter.81
In practice, Bangladesh does not accord citizenship to a person born in Bangladesh if at least one of his or her parents is not a citizen of Bangladesh.82 Since the Bangladeshi
citizenship of the parent(s) of a child born in Bangladesh is a primary reason for his or her becoming a citizen by birth, it can be safely argued that, without any formal legal amendment, Bangladesh citizenship principle has de facto shifted from ius soli to ius sanguinis.83 This
76 Please visit: http://eudo-citizenship.eu/docs/ius-soli-policy-brief.pdf.
77 Islam (1990: 8-9), for example, thinks that Bangladesh does not follow the principle of ius soli except when
the concerned child’s both parents are unknown and the child is born in Bangladesh. It is to be noted that while this has been the practice by Bangladesh, the law does not seem to categorically oust ius soli citizenship.
78 That a child born to parents who are foreign diplomats does not automatically acquire ius soli citizenship is an
exception under customary international law (Shearer & Opeskin 2012: 5) and is supported by The Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws 1930, art. 12.
79 See also Golam Azam’s Case, above n. 17.
80 As Mustafa Kamal J. in the Golam Azam case, ibid., at p. 222, remarked, ‘[the] citizenship law in Article 2 is
governed by the concept of ‘permanent residence’ which has not been defined in th[at] … Order’.
81 For this, I have borrowed the argument of Jayal (2016: 166).
82 Earlier, a child (not being an illegitimate child) born in Bangladesh to a Bangladeshi mother and whose father
was a non-citizen could not acquire citizenship at birth. Since the legal change of 2009 relating to citizenship by descent (noted above n. 47), a child born to a Bangladeshi mother either in Bangladesh or abroad acquires citizenship.
83 As Jayal (2016: 164) notes, in India too ius soli citizenship has over time come to be inflected through several
paradigmatic policy shift is reflected in the fact that a child born to foreign parents generally or to non-citizen Rohingya parents in Bangladesh in particular do not acquire citizenship.
The second major mode of citizenship acquisition in Bangladesh is based on the principle of ius sanguinis (law of the blood relationship), that is, citizenship based on parentage. The principle of citizenship by descent was gender-biased before 2009, and it was only the male parentage that was the basis of this mode of citizenship.84 As noted in part 2
above, the amended section 5 of the 1951 Act provides for citizenship by descent for a child born outside Bangladesh to a Bangladeshi father or mother who is a citizen by birth at the time of the child’s birth. And, if the child is born abroad to a parent who is a citizen of Bangladesh by descent, the child’s birth has to be registered at a Bangladesh Consulate or Mission in the concerned country or the citizen parent needs to be in the service of Bangladesh at the time of the child’s birth for the obtainment of citizenship certification.85
Interestingly, the law is silent as regards the citizenship of a child born abroad to a naturalised Bangladeshi citizen, in which case the rule concerning the parent who is a citizen by descent should apply by default.
3.1.1 Citizenship by naturalisation (Foreigners’ acquisition of citizenship)
Bangladesh citizenship can also be acquired through naturalisation, on which the laws are superfluous and contradictory. The major law on the subject is the Naturalisation Act 1926, supplemented by the Naturalization Rules 1961 enacted during the Pakistani regime.86 The 1926 Act provides for naturalisation of foreigners (‘aliens’) resident in Bangladesh. The 1972 Citizenship Order (art. 4) also lays down a provision for naturalisation of foreigners, but without using the terms ‘naturalisation’ or ‘foreigner’.
Ideally, any foreigner (‘any person’), who has completed his age of twenty-one years87
and whose country of origin does not prevent a Bangladeshi citizen to be naturalised there, may apply for being naturalised as a Bangladeshi citizen.88 According to the Naturalisation
Act 1926, the concerned applicant has to stay in Bangladesh for a period of 8 years, of which a minimum of 5 years in aggregate, including an incessant continuous stay of 12 months just before applying for naturalisation, is required.89 A contradictory rule in the 1978 Rules,
however, provides that an ordinary residence of a period of 5 years will suffice as a criterion of naturalisation.90 Additionally, the applicant has to renounce his original citizenship and
abandon his domicile of origin.91
84 This has been an ancient principle. The Greek citizenship law, for example, was based on the principle of
origin (ius sanguinis), providing for the child’s automatic acquisition of the father’s citizenship at birth, irrespective of where the child was born.
85 See the proviso to sect. 5 of the 1951 Act, and rule 9 of the Citizenship Rules 1952.
86 The Naturalisation Rules 1961, framed under sect. 13 of the Act, though part of Bangladesh’s law, are
apparently not applied by the Bangladesh authorities when dealing with naturalisation of foreigners. The Citizenship Rules 1978 are the governing rules in this regard.
87 By virtue of the 1978 Rules, however, the age for an independent application for naturalisation is arguably
eighteen, because the 1972 Order does not mention the applicant’s age.
88 The Naturalisation Act 1926, sect 3(1) read with sect. 2. See also sect. 4 of the 1926 Act and rule 4 of the 1978
Rules that provide for the content of an application for naturalisation.
89 Ibid., sect. 3(1)(c).
90 See the Citizenship Rules 1978, rule 4(1)(b). The residence requirement for a foreign woman married to a
Bangladeshi is, however, 2 years.
91 Ibid., rule 4(1). Application for naturalisation has to be made directly to the government (Ministry of Home
There is not an automatic right of naturalisation, and the ‘grant of a certificate of naturalisation [is] in the absolute discretion of the Government’.92 The grant of certificate of
naturalisation accords to the person concerned a status of citizenship, which however takes effect only after she or he takes and subscribes the oath of allegiance to Bangladesh.93 Upon
naturalisation and the oath of allegiance, naturalised persons are ‘deemed to be citizens of Bangladesh’ and become subject to ‘all obligations, duties and liabilities of a citizen of Bangladesh’ and ‘entitled to all the rights, privileges and capacities of a citizen of Bangladesh’.94 If the person applying for naturalisation enters in the application the name of
any minor child of him or her residing in Bangladesh, the child also becomes entitled to the rights and privileges of a citizen of Bangladesh.95
To help implement the policy to attract and increase foreign direct investment in Bangladesh, a new criterion has been added to the conditions of citizenship by naturalisation. According to what has come to be known as ‘citizenship by investment’, any person who invests an amount of USD 5 million or its equivalent in an industrial or commercial project of Bangladesh or transfers USD 1 million to any of the recognised financial institutions in Bangladesh may be granted citizenship through naturalisation. These investments are non-repatriable, and hence may not be withdrawn.
As discussed immediately below, a foreign woman who is married to a Bangladeshi citizen may also apply for citizenship through naturalisation. This has been a long standing principle of the citizenship law of Bangladesh.
There is no readily available data regarding the grant of citizenship to foreign nationals through naturalisation. The following Table, however, shows statistics of citizenship granted to foreigners on the basis of residence, investment, and marital relationship over a period of 19 years (1988 to 2016).96 It is interesting to note that through this long period, only
418 people have been naturalised as Bangladesh citizens, of whom 418 were granted citizenship on the basis of family relationship (which is 99.52% of total naturalisation) and 2 were granted citizenship on the basis of investment (which is only 0.48%). The total absence of naturalisation during this period on the basis of residence in Bangladesh shows that the residency condition is a high threshold barrier on the way to citizenship acquisition. One potential reason might be that foreigners are not interested to be ordinarily resident in Bangladesh on a longer term basis. It might also possibly be a case that the length of the residency requirement (5 years) is a prohibitive condition. On the other hand, the rules regarding visas for foreigners including the ones for the renewal of visas are not supportive enough to encourage foreigners to live in Bangladesh for a longer time.
92 The Naturalisation Act 1926, sect. 5(3). 93 Ibid., sect. 7(1).
94 Ibid. An exception can be made to the enjoyment of those rights ‘as may have been withheld’ by the certificate
of naturalisation.
95 Ibid., sect. 5(2).
96 These statistics are collected from the Ministry of Home Affairs, Government of Bangladesh, by virtue of a
personal communication by the contributor of the present report, and the help of the relevant wing of the Ministry is thankfully appreciated.
Table: Bangladeshi citizenship granted to foreigners
Year Total Family
Relationship Residence Investment 1988 4 4 0 0 1989 34 34 0 0 1990 12 12 0 0 1991 14 14 0 0 1992 13 13 0 0 1993 20 20 0 0 1994 37 37 0 0 1995 43 43 0 0 1996 12 12 0 0
1997 26 24 0 2 (one from Hong Kong and the
other from Taiwan)
1998 22 22 0 0 1999 15 15 0 0 2000 19 19 0 0 2001 12 12 0 0 2002 6 6 0 0 2003 0 0 0 0 2004 12 12 0 0 2005 24 24 0 0 2006 14 14 0 0 2007 13 13 0 0 2008 13 13 0 0 2009 9 9 0 0 2010 0 0 0 0 2011 3 3 0 0 2012 22 22 0 0 2013 6 6 0 0 2014 8 8 0 0 2015 3 3 0 0 2016 2 2 0 0 Total 418 0 2
3.1.2 Citizenship through marriage and gender-inequality
The law provides for the citizenship acquisition through marriage, which is, however, not an automatic acquisition. Acquisition of citizenship through marriage is indeed through naturalisation of the person concerned and is dependent on obtaining a certificate of domicile or residence in Bangladesh for a period of two years.97
The rules of citizenship acquisition through marriage are, however, clearly gender-biased. Unlike in the case of a Bangladeshi woman’s right to transmit citizenship to her children born to a non-citizen father, a Bangladeshi woman married to a foreigner cannot pass citizenship to her husband. This is discriminatory against women and therefore unconstitutional,98 because a Bangladeshi man marrying a foreign woman can so transmit
citizenship to her, albeit subject to the fulfillment of certain conditions. Section 10(2) of the Citizenship Act 1951 provides that a non-citizen woman who has been married to a citizen of Bangladesh shall be entitled to be citizen of Bangladesh upon obtaining a certificate of domicile and taking the oath of allegiance.99 The 1978 Citizenship Rules further reaffirm the
discriminatory rule of acquiring citizenship through marriage, allowing only a ‘foreign national [being] a wife of a citizen of Bangladesh’ or ‘a foreign woman … married to a Bangladeshi’ to apply for naturalisation certification.100
It is encouraging that the government of Bangladesh has made a recent declaration in its 8th periodic report under CEDAW that ‘a woman’s right to pass on her citizenship to her
foreign spouse is under consideration’.101 As will be seen below, the draft citizenship bill of
2016 has included a gender-neutral provision in this regard. 3.1.3 Citizenship of foundlings and adopted children: the legal gap
The above shows that the citizenship law of Bangladesh is silent about, or deficient in clarity regarding certain issues of citizenship. Two specific issues that seem to be not covered by the law categorially are the issue of citizenship of a foundling of unknown parentage born or found in Bangladesh. A child born in Bangladesh whose both parents are unknown is nonetheless presumed to be a citizen of Bangladesh. This presumption is supported by the principle of citizenship by birth. Another issue is the citizenship status of a child adopted by a Bangladeshi citizen. In this regard, there seems to be no legal provision at all. Bangladesh is a country of legal and religious pluralism. While Bangladeshi Muslims are not legally allowed to adopt children (Huda 2008), Hindus and Christians of Bangladesh may adopt children
97 See rule 4 of the Citizenship Rules 1978 (and art. 4 of the 1972 Citizenship Order), the Citizenship Act 1951
(sect. 10(2)), and the Naturalisation Act 1926 (sect. 7(1)).
98 See the Constitution of Bangladesh, especially arts. 27 (‘All citizens are equal before law’) and 28(1) (‘The
State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth’).
99 With regard to the same sect. 10(2) of the 1951 Act in Pakistan, the Federal Shariat Court in a suo motu ruling
(of 12 December 2007) held this provision unconstitutional for being discriminatory against women and directed the Government of Pakistan to take measures towards granting Pakistani citizenship ‘to a foreign husband married to a Pakistani woman’. This decision has since been pending on appeal before the Shariat Appellate Bench of the Pakistani Supreme Court (Shah 2016).
100 See respectively rule 4(1), proviso (a), and rule 4(3) of the Citizenship Rules 1978 (as amended in 1985). See
also sect. 7(1) of the 1926 Act under which a non-citizen wife of a person who has become a naturalised citizen may make a declaration expressing her wish to become a Bangladeshi citizen within 1 year of the husband’s taking oath of allegiance following naturalisation.
101 See the Eighth Periodic Report of the Government of the People’s Republic of Bangladesh under the
Convention on the Elimination of All Forms of Discrimination Against Women, May 2015 (available at: http://mowca.portal.gov.bd/sites/default/files/files/mowca.portal.gov.bd/page/762c7e6e_69ce_4979_817c_f7dbc 2b561ed/8th%20Periodic%20Report-%20CEDAW.pdf ) at p. 14, para. 75.
